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Are horses which are bred for blood serum 'live-stock' for the purposes of subsection 23(2) of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

No. Horses which are bred for blood serum are not 'live-stock' for the purposes of subsection 23(2) of the EGCSA.

The client breeds horses to sell their blood for medical and veterinary purposes.

Section 53 of the EGCSA provides that a claimant is entitled to an off-road credit if they purchase diesel fuel for a use by them that qualifies, including 'agriculture'.

'Agriculture' is defined in subsection 22(1) of the EGCSA to mean: ... (c) the rearing of live-stock; ...

The term ' live-stock ' is defined in section 4 of the EGCSA as having a meaning 'affected by subsection 23(2) of the EGCSA'. Subsection 23(2) defines live-stock in the following terms: The expression live-stock includes any animal reared for the production of food, fibres, skins, fur or feathers, or for its use in the farming of land.

We consider that subsection 23(2) of the EGCSA affects the meaning of live-stock in two ways.

Firstly, it clarifies that the term includes any animal which accords with the ordinary meaning of the term live-stock. The ordinary meaning of 'live-stock' according to The Macquarie Dictionary, 2001, rev. 3rd edn, The Macquarie Library Pty Ltd, NSW is 'the horses, cattle, sheep, and other useful animals kept or bred on a farm or ranch.

Secondly, subsection 23(2) of the EGCSA limits the definition by requiring that the animal be reared for the production of food, fibres, skins, fur or feathers, or for its use in the farming of the land.

The word 'includes', used in the definition of live-stock, has been considered in numerous cases (see: Re Proprietary Articles Trade Association of South Australia Inc. [1949] SASR 88; Lippett v. Robertson [1953] SASR 13; In the Estate of Nicholas [1955] VLR 291; Cuisenaire v. Reed (1962) 5 FLR 180; YZ Finance Co. Pty Ltd v. Cummings (1964) 109 CLR 395; Cohns Industries Pty Ltd v. DFC of T 79 ATC 4243; (1979) 9 ATR 759; Marsal Pty Ltd & Ors v. Comptroller of Stamps (Vic) (1982) 82 ATC 4536).

In some instances, the term 'includes' is used as an extension of the thing defined or described and at other times to provide clarification. In the definition of agriculture in the EGCSA, the expression is used in a variety of constructions, and each activity in which it is used must be examined separately to see the sense in which it is used. It is often used to simply make clear what the particular activity or definition intends to cover.

In the context of the definition of 'live-stock' in subsection 23(2) of the EGCSA, the term 'includes' clarifies but does not expand the meaning of live-stock. It clarifies that only those animals that are reared for the production of food, fibres, skins, fur or feathers, or for their use in the farming of land qualify as live-stock for the purposes of the EGCSA. This is supported by Hemens (Valuation Officer) v. Whitsbury Farm and Stud Ltd and other appeals [1987] ER 430 ( Hemens ).

In Hemens , a definition of 'live-stock' similar to the definition of 'live-stock' in the EGCSA was considered. Balcombe LJ at 449 stated that the definition of live-stock, in the context of the provision being discussed, did not include racehorses. He came to this conclusion because the words of the relevant Act were 'any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land' and these words would not have been used if the word 'livestock' was intended to cover the keeping of any creature whether for its use in farming land or not. He believed that these words show a clear intention that 'live-stock' does not extend to the breeding and keeping of horses unless it is for the purpose of their use in the farming of land.

The comments made by Balcombe L.J. in Hemens apply equally to the definition of 'live-stock' in subsection 23(2) of the EGCSA. Therefore, in the context of section 23, the term 'live-stock' means any animal kept for the production of food, fibres, skins or fur, or for its use in the farming of land.

As the horses in this instance are bred for their blood, rather than for the production of food, fibres, skins, fur or feathers, or for their use in farming the land, they are not livestock for the purposes of subsection 23(2) of the EGCSA.